The Paradox Of Equality And The Politics Of Difference .
TSpace Research Repositorytspace.library.utoronto.caThe Paradox of Equality and the Politics ofDifference: Gender Equality, Islamic Law,and the Modern Muslim StateAnver EmonVersion Post-print/accepted manuscriptCitation Anver Emon, "The Paradox of Equality and the Politics of Difference:(published version) Gender Equality, Islamic Law, and the Modern Muslim State" in ZibaMir-Hosseini, Kari Vogt, Lena Larson & Christian Moe eds, Genderand Equality in Muslim Family Law: Justice and Ethics in the IslamicLegal Tradition (London: IB Tauris, 2013).Publisher’s Statement Anver Emon, "The Paradox of Equality and the Politics of Difference:Gender Equality, Islamic Law, and the Modern Muslim State" in ZibaMir-Hosseini, Kari Vogt, Lena Larson & Christian Moe eds, Genderand Equality in Muslim Family Law: Justice and Ethics in the IslamicLegal Tradition (London: IB Tauris, 2013).Copyright [2013]. Reprinted by permission.How to cite TSpace itemsAlways cite the published version, so the author(s) will receive recognition through services that trackcitation counts, e.g. Scopus. If you need to cite the page number of the author manuscript from TSpacebecause you cannot access the published version, then cite the TSpace version in addition to the publishedversion using the permanent URI (handle) found on the record page.This article was made openly accessible by U of T Faculty.Please tell us how this access benefits you. Your story matters.
The Paradox of Equality and the Politics of Difference: Gender Equality, Islamic Law, and theModern Muslim StateAnver M. Emon I. IntroductionThe pursuit of gender equality in Islamic family law, as codified in various Muslim states, is neither anew phenomenon nor one that is lacking considerable study. Indeed, many scholarly monographs, editedcollections, and academic journals present thoughtful, well-researched, and passionate contributions thatare animated by the goal of gender justice in the Muslim world.1 This essay is indebted to that vast bodyof literature, and indeed is a humble offering that stands in the shadow of all that has come before. thereader’s attention to a subtle irony that underlies the pursuit of justice. That irony has everything to dowith what is often called the ‘paradox of equality’. If equality requires the same treatment of those whoare similarly situated, the paradox of equality reminds us that we cannot treat similarly those who are notsimilarly situated. Indeed, there are times when justice demands that we legally differentiate betweenpeople because of their differences. Legal differentiation is a common feature of the law, a sine qua nonof justice. For instance, we may demand separate bathrooms for men and women. In the interest ofaccommodating the needs of those who are disabled, we may create yet a third bathroom that is speciallydesignated for them and equipped with certain devices designed to aid those who might requireassistance. We may even argue (and convincingly so) that differentiation in these cases is right, good andjust. However, in all these cases, we cannot deny that men and women are treated differently, and that thedisabled are treated differently. In this simple, if not banal, example, we see the paradox of equality atwork – sometimes people have to be treated differently in order for justice to be served. 2 Differentiation,in this fashion, is distinct from discrimination. Discrimination is an evaluation that a particulardifferentiation constitutes disadvantages against a particular group and that such disadvantages render thedifferentiate illegitimate. Legal differentiation by itself is therefore a common and expected feature of theAssociate Professor, Faculty of Law, University of Toronto. The author wishes to thank Zainah Anwar, Ziba MirHosseini, Kari Vogt, and Lynn Welchman for their encouragement and support of this research. My colleagueSophia Reibetanz-Moreau was generous with advice and insight on contemporary philosophical debates on equality.Special thanks go to my friend and colleague, Robert Gibbs (University of Toronto) for our engaging debate anddiscussion on Aristotle’s Nichomachean Ethics. Although he may not realize it, Akhil Amar of Yale Law Schooldeserves special thanks for introducing me to the diversity of scholarship on constitutional interpretation in theUnited States. Rumee Ahmed and Ayesha Chaudhry read an earlier draft of this article and helped make it better.My very able research assistant, Kate Southwell provided helpful copy-editing and improved the readability of thearticle. Lastly, the author thanks the Oslo Coalition for its hospitality in early January 2010 in Cairo, Egypt, wherehe had an opportunity to share some of the ideas that are presented herein at a workshop featuring other authors inthis volume. Examples of such works include: Amina Wadud, Qur’an and Woman: Rereading the Sacred Text from aWoman’s Perspective (Oxford:Oxford University Press, 1999); Fatima Mernissa, The Veil and the Male Elite: AFeminist Interpretation of Women’s Rights in Islam (New York: Basic Books 1992); Leila Ahmed, Women andGender in Islam: Historical Roots of a Modern Debate (New Haven: Yale University Press 1993); Ziba MirHosseini, Islam and Gender (Princeton: Princeton University Press, 1999). For a journal devoted to such issues, seeHawwa: Journal of Women of the Middle East and the Islamic World (Brill Publishers).1The banality of this example is rendered complicated when considering how the neat dichotomy between male andfemale bathrooms does not account for the transgendered, or those in varying phases of gender-reassignment.2Electronic copy available at: http://ssrn.com/abstract 1758966
law. The paradox of equality offers analytic bite by asking about the conditions under which a particularfactual difference leads to a legal differentiation that is not at the same time discriminatory, and therebyillegitimate under the aw.This essay approaches the question of gender equality from the vantage point of the paradox of equality.Instead of focusing narrowly on whether and how women are discriminated against and challenging therole of patriarchy in animating such discrimination, this essay will step back and instead inquire intowhether and why differentiation in the law is justified and legitimated, and explore how legaldifferentiation in one context can be discrimination in another. The essay will, thereby, distinguishbetween factual difference, legal differentiation, and discrimination. These distinctions are significantbecause they beg important questions that all too often remain unaddressed: what makes certain factualdifferences irrelevant as a matter of law, others as legitimate bases for legal differentiation, and yet othersare deemed illegitimate because deemed discriminatory? For instance, the factual difference between afive year old and a six year old boy may not matter in terms of how one measures the relevant standard ofcare in the Common Law of Tort, where the boy is sued for negligently injuring another child. But thefactual difference between a five year old boy and a seventeen year old boy provides a basis for legaldifferentiation: the seventeen year old will be held to a higher standard of care.3This essay contributes to the existing literature on gender, equality and Islamic law by interrogating thenuances of equality from the vantage point of the paradox of equality. Part II examines the differentstrategies used by those advocating gender equality in the Muslim family. Part III illustrates how theparadox of equality is an ancient concept with roots in both Greek and Islamic philosophy. Part IV showshow the vantage point of the paradox of equality allows us to critically question and explore theassumptions that animate the development of legal rules that differentiate and discriminate against peopleon different grounds. Parts V and VI examine how Islamic law has legitimated differential treatment ofmen and women by reference both to the law and to extra-legal factors associated with the post-colonialcondition of Muslim societies. Part VII brings the analysis to a close by suggesting that to shift what thehistorical tradition represents as legal differentiation between men and women to discriminatory andthereby illegitimate as a matter of Islamic law will involve both legal and extra-legal factors. Drawingupon scholarship about the women’s movement in the United States, this essay suggests that legal changein the Muslim world will require more than just attentiveness to the intricacies of legal texts and legalreasoning. It will require social movements to occupy the streets and articulate alternative legal outcomesto expand the scope of what is legally intelligible, meaningful, and possible. Implicitly, this essaysuggests that social movements would do well to bear in mind the paradox of equality as they design theirresearch and activist agendas. The paradox of equality helps to identify the unstated assumptions thatmakes legal differentiation possible, thereby quietly justifying what is tantamount to discriminatorytreatment under the law.II. Equality in Muslim Reformist WritingsMcHale v. Watson (1966), 115 CLR 199 (Aust. HC); see also Mayo Moran, Rethinking the Reasonable Person(Oxford: Oxford University Press, 2003) for a discussion of this case and others addressing the reasonable personstandard of care.3Electronic copy available at: http://ssrn.com/abstract 1758966
A review of literature concerning gender and justice in Islamic law shows that Muslim writers begin fromthe starting point of a patriarchy that is either considered embedded in the tradition or imposed upon itfrom outside. For instance, Fatima Mernissi, in her path-breaking work, writes in an autobiographicalmoment: “When I finished writing this book I had come to understand one thing: if women’s rights are aproblem for some modern Muslim men, it is neither because of the Koran nor the Prophet, nor the Islamictradition, but simply because those rights conflict with the interests of a male elite.”4 Others note thatpatriarchy can certainly be read from the main source-texts of the Islam, such as the Qur’an, but they arekeen to suggest that patriarchy is separable from the Qur’an’s message. Asma Barlas acknowledges thatdescribing the Qur’an as patriarchal is anachronistic at best. Rather, the aim of her book is to “challengeoppressive readings of the Qur’an” and “to offer a reading that confirms that Muslim women can strugglefor equality from within the framework of the Qur’an’s teachings.”5 Acknowledging that patriarchalreadings of the Qur’an abound, Barlas nonetheless seeks to find a way to gender equality through thesacred text. A third approach, complementary to Barlas’, is the hermeneutic approach of Farid Esack.Rejecting predominant paradigms of gender relations that perpetuate existing power imbalances betweenmen and women, Esack reads the Qur’an through the hermeneutic lens of justice, and not mere kindness,the latter of which perpetuates the existence of oppression.6 Theories of interpretation are proffered,building on hermeneutic principles of justice in light of the relationship between the reader, the text, andmeaning.At the heart of these writers’ concern is the need to recognize and articulate a conception of genderequality as a character of justice in Islam. However, the meaning and implications of gender equality arenot always shared between them. For Mernissi, equality is captured in the language of common andshared “rights” at the political, social, and sexual level. She correlates this rights-oriented view ofequality with the historic independence of Muslim states from colonial subjugation. These new stateswere “born” into an international system of equal and sovereign states, where the aspiration todemocracy, constitutionalism, and rule of law forced a recognition of the individual as citizen. As newMuslim states entered the international community and redefined themselves, “in the eyes of their formercolonizers, they were forced to grant their new citizenship to all their new nationals, men and women The metamorphisis of the Muslim woman, from a veiled, secluded, marginalized object reduced toinertia, into a subject with constitutional rights, erased the lines that defined the identity hierarchy whichorganized politics and relations between the sexes.” 7 Mernissi’s equality, arguably, is one that drawsupon presumptions about the state, constitutionalism, and the citizen as rights bearer. Likewise, Esack’spassionate plea for gender justice perpetuates the language of rights. 8 When writing about the rights“given” to Muslim women, he asks: “Are human rights a gift awarded to well-behaved little children as ifwomen exist outside the world of Islam in the same way that children are seemingly external to theFatima Mernissi, The Veil and the Male Elite: A Feminist Interpretation of Women’s Rights in Islam (Reading,MA: Addison-Wesley Publishing Co., 1991), ix.4Asma Barlas, “Believing Women” in Islam: Unreading Patriarchal Interpretations of the Qur’an (Austin:University of Texas Press, 2002), xi.5Faris Esack, On Being Muslim: finding a religious path in the world today (1999; reprint, Oxford: OneworldPublications, 2002), 111-136.67Mernissi, The Veil and the Male Elite, 22.8Esack, On Being a Muslim, 114.
world of adults?”9 Esack uses the language of rights to characterize his agenda of gender justice, which isconstituted by a commitment to equality: “The right to self-respect, dignity, and equality comes with ourvery humanness.”10 When Mernissi and Esack write about “equality”, they have in mind a particularsubstantive content that arguably echos the language of classical liberal notions of rights. Whetherdefined by a constitution that grants rights pursuant to general human rights norms, or even human rightstreaties such as the Universal Declaration of Human Rights, 11 equality for both authors reflects a certaincontent (namely a liberal one) expressed in terms of rights.Departing from the rights-based models of equality, Barlas’ approach recognizes that justice may, in fact,require legal differentiation; in other words, she invokes the “paradox of equality”. In her attempt tounread patriarchy in the Qur’an, Barlas argues that the Qur’an is egalitarian and antipatriarchal.12 But shecautions that this does not mean that the Qur’an does not treat men and women differently. Rather,sexual equality need not mean the absence of differential treatment. She writes:[W]hile there is no universally shared definition of sexual equality, there is a pervasive (andoftentimes perverse) tendency to view differences as evidence of inequality. In light of this view,the Qur’an’s different treatment of women and men with respect to certain issues (marriage,divorce, giving of evidence, etc.) is seen as manifest proof of its anti-equality stance and itspatriarchal nature. However, I argue against this view on the grounds both that treating womenand men differently does not always amount to treating them unequally, nor does treating themidentically necessary mean treating them equally. 13To be anti-patriarchal does not mean that factual difference must be obscured, or that legal differentiationmust be avoided at all times and places.The examples of Mernissi, Esack and Barlas are offered to show different ways in which gender justiceand equality are framed in contemporary debates on Islamic law. The specific agenda of each author isless relevant for this essay; what is more significant is their different approaches to the notion of equality.One approach implicitly conveys a liberal-sounding rights-based approach to the content of equality.Another approach views equality and justice as requiring a determination of whether differences exist infact, and whether those factual differences justify differential treatment, or whether such differentialtreatment might actually be discriminatory, and thereby illegitimate. This latter approach to equality isparticularly important for this essay, as it explores the analytic contribution of the “paradox of equality”to the future of gender equality in the Muslim world.9Esack, On Being a Muslim, 115.10Esack, On Being Muslim, 115.11See for example, Mernissi, The Veil and the Male Elite, 2, 23.12Barlas, “Believing Women”, 5.13Barlas, “Believing Women”, 5.
III. The Paradox of EqualityThe paradox of equality is that, as a principle of justice, it recognizes that equality is not merely aboutbeing treated the same. Rather the paradox reveals that equality as a matter of law is not only abouttreating two things equally because they are the same or share a quality of sameness. Equality as amatter of law must also treat two people differently when they are deemed to be sufficiently different as amatter of fact to warrant or justify such legal differentiation. Indeed, to treat different people as thesame might lead to injustice or, at the very least, considerable discomfort. By bringing forward thecontrasting tendencies in equality, the paradox of equality requires us to distinguish between the fact ofsameness and difference, and the normative implications given to that factual sameness or difference.That distinction then begs certain fundamental and difficult questions: when and under what conditionsshould a certain factual difference between two people lead to and justify legal differentiation that entailsdifferent distributions of resources and different sets of rights claims? And under what circumstancesdoes that legal differentiation become discriminatory? For instance, in various constitutionaldemocracies, both men and women have the right to vote. In this case, gender difference is irrelevant(although that was not always the case). On the other hand, because of the factual difference of gender,public restrooms are generally gender segregated - a normative differentiation. In contrast, a rule thatprohibits abortion is discriminatory given the undue burden such a rule places upon women, while mensuffer no such burden. In all three cases, the normative or legal implication of factual difference resonatedifferently; the paradox of equality alerts us to the different registers, and begs important questions aboutthe conditions under which a factual difference matters or not.This article interrogates the nature of equality by interrogating the dynamics of the paradox of equality.Equality, differentiation and discrimination are terms of art that alert us to the fact of difference andprompt us to inquire into whether and why a particular factual difference can or must imply legitimizedforms of differentiation, and the conditions under which such differentiation may actually bediscriminatory. This approach to equality and discrimination allows us to unpack the assumptions ofjustice that underlie rules that differentiate between people, and subject those assumptions of justice tocritical scrutiny. In doing so, the article will make plain the need for multiple strategies to counter thepresumptions that perpetuate the legitimacy of legal differentiations that have discriminatory features andimpact.A. Islamic Philosophy, Musāwa, and the Paradox of EqualityApproaching the issue of equality in light of its paradoxical quality allows us to adopt a critical stance onthe premodern Islamic legal tradition without at the same time uncritically reading into that critiqueliberal notions of equality . Furthermore, to think about equality in terms of the paradox draws upon aprinciple of justice that, arguably, is shared across traditions. For instance, in his Nichomachean Ethics,Aristotle wrote about justice as equality: “Now since an unjust man is one who is unfair, and the unjust isthe unequal, it is clear that corresponding to the unequal there is a mean, namely that which is equal; forevery action admitting of more and less admits of the equal also. If then the unjust is the unequal, the justis the equal – a view that commends it
Gender Equality, Islamic Law, and the Modern Muslim State" in Ziba Mir-Hosseini, Kari Vogt, Lena Larson & Christian Moe eds, Gender and Equality in Muslim Family Law: Justice and Ethics in the Islamic Legal Tradition (London: IB Tauris, 2013). Publisher’s Statement Anver Emon, "The Paradox of Equality and the Politics of Difference:
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